Moral Rights under Beijing Treaty on Audiovisual Performances

The Beijing Treaty was adopted on 26 June 2012 by the Diplomatic Conference on the Protection of Audiovisual Performances of the World Intellectual Property Organization (“WIPO”) but only ratified recently by most signatories. As a result, what does this treaty mean for the film industry and copyright for audiovisual performances and moral rights?

The Beijing Treaty is a newly ratified multilateral treaty that seeks to expand performers’ rights. Only recently, the treaty has entered into force as it has been ratified by at least 30 of the 122 signatories. The treaty is the first of its kind and benefits audiovisual performances whose performances are incorporated into an audiovisual work such as a film or T.V. program.[1] The treaty grants audiovisual performers four economic rights under the treaty as well as specific moral rights. For example, the only other treaty of this magnitude dealing with moral rights are the minimum standards set out in the Berne Convention article 6bis. There is 6bis(1) which protects paternity and 6bis(2) which protects the integrity of the work. Berne protects the form and spirit of the work.[2] So how will the Beijing treaty change what is covered and Berne?

The Beijing Treaty grants performers moral rights, that is, the right to claim to be identified as the performer (except where such an omission would be dictated by the manner of the use of the performance); and the right to object to any distortion, mutilation or other modification that would be prejudicial to the performer’s reputation, taking into account the nature of the audiovisual fixations.[3] The two main differences in this treaty from Berne are the moral and economic rights for audiovisual performers under articles 5 and 6.

The gap between protection in France and U.S. has always been staggering.[4] Interestingly, the U.S., has never complied with article 6bis yet, one of the driving forces of the Beijing Treaty are the protections of the performers moral rights to a work. The U.S. adopted two acts that are meant to cover some moral rights protections: Lanham act and Visual Artists Rights Act (VARA) but neither actually allows for protection of moral rights.[5] There are various cases that show how the U.S. shy’s away from any protection of moral rights.[6] By analyzing these cases one can see how the Beijing treaty would alter U.S. law and more importantly, how it would impact contracts within the film industry.

The U.K. is arguably not in compliance with the Berne convention as to moral rights. The U.K. acknowledges moral rights in false attribution, privacy, paternity and integrity.[7] U.K. copyright can be seen as very commercial interest focused and some scholars even call for a high originality requirement and a new system including unfair competition.[8] Although I disagree with this view as I find that in such a case one may as well get rid of common law copyright entirely, it shows that there is massive confusion in moral rights case law in the U.K. For example, in Tidy v Trustees of the Natural History Museum, cartoon drawings featuring dinosaurs were published in a book at a reduced size detracted from visual impact and harm reputation.[9] The court held in favor of the museum requiring there to be both treatment and that the treatment was prejudicial to the honor and reputation of the author.[10] On the other hand, Confetti Records v Warner Music UK Ltd., there as an addition of rap lyrics in a song however, the words had no meaning and were hard to decipher so there was no evidence to harm author’s reputation and therefore the court found no infringement.[11] These two cases are complete opposites and the court is unclear whether there just one criterion or not. Professor Bentley believes that based on Confetti Records there is still just one criterion but, that under Tidy distortion or treatment that is otherwise prejudicial to the honor.[12] Thus, it will be important to understand what is the case law for integrity rights in the U.K. to understand how this treaty will impact moral rights in the U.K.

France has always been above and beyond what is required in the Berne Convention.[13] In France moral rights are inalienable, perpetual and imprescriptible and France protects the right to divulgation, paternity, integrity and revocation.[14] It seems most likely that there will not be a great impact on French moral rights. Even article 5(2), which contains a clause dealing with moral and economic rights after the death of the performer are already covered by French law’s abuse of rights law.[15]

(i) to claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use of the performance; and

(ii) to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation, taking due account of the nature of audiovisual fixations.

The treaty gives paternity and integrity rights to performers. Moreover, as expressed above, there are “abuse of rights” which even protects the performer after death. Furthermore, article 6 states,

Performers shall enjoy the exclusive right of authorizing, as regards their performances:

(i) the broadcasting and communication to the public of their unfixed performances except where the performance is already a broadcast performance; and

(ii) the fixation of their unfixed performances.

These rights are will massively impact contracts with performers and how they interact with production and film companies. By looking at the U.S., U.K. and French case law, copyright acts, the Berne Convention and film contracts, one can only begin to imagine how the Beijing treaty will impact the film industry and moral rights of audiovisual performers.

[5]See Natalie C. Suhl, “Moral Rights Protection in the United States Under the Berne Convention: A Fictional work?”, 12 Fordham Intellectual Property Media and Entertainment Law Journal 1203 [2002] and See also generally, David E. Shipley, “The Empty Promise of VARA: The Restrictive Application of a Narrow Statute“, [2014] 83:5 Mississippi Law Journal 986, AVAILABLE AT (http://ssrn.com/abstract=2284910, VARA protection is very narrow in scope and substance as shown in the case law.

[15] Article 5(2), “The rights granted to a performer in accordance with paragraph (1) shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the Contracting Party where protection is claimed.”